On the Royal Commission into Northern Territory juvenile detention centres

Bearing witness to the horrors that human beings inflict on each other prompts many responses. One is silence. Another is to express shock. A third is gesture politics, as Prof Megan Davis writes here and Luke Pearson here.

One of the loudest public responses to terrible acts of violence in Australia is to call for an inquiry. When a politician responds by apparently deciding overnight to hold a Royal Commission, it is very likely to be an act of gesture politics.

This week, Malcolm Turnbull responded to mass media exposure of a problem – an endemic problem with a history as long as colonial Australia – by announcing a Royal Commission into Northern Territory juvenile detention centres.

As pointed out by Michelle Grattan and Brian Stout among others, the ‘evidence of NT detention centre abuse was there for all to see’. The Prime Minister knew or ought to have known. The Chief Minister did know. We know they knew because the NT Children’s Commissioner published its report in August 2015.

But there seems to be some confusion as to what is a Royal Commission, as well as to what a Royal Commission can achieve. A Royal Commission is a process, not an end in itself – although announcing a Royal Commission can be a political end in itself.

The nature of Royal Commissions

Royal Commissions are a serious business: the act enabling their establishment is only a year younger than the Commonwealth of Australia Constitution. The penalty for intentionally insulting a Royal Commission is imprisonment for three months. If the Commissioner is a judge, no trial is required – the Commissioner acts as police, judge and jury.

Royal Commissions bear witness, and are reported in detail. So the citizenry can bear witness too.

Referrals may be made for prosecution, and may produce convictions, which might be followed by custodial sentences – or not – as the law takes it laborious course.

Recommendations are always included in the final reports. This is the systemic aspect, the central purpose of an RC, that which goes beyond individuals to the whole of the society.

Governments may accept some or all of the recommendations. Governments might then legislate for the implementation of the recommendations. Or not.

Executive government – the minister and public servants whose job it is to implement cabinet decisions – may do as directed, in part or in full. Employees who ignore or resist government directives may face consequences for this form of misconduct. Or not.

So the pathway from announcing a Royal Commission to a positive change in the way we are governed – whether a harm done is compensated, whether the wrong-doer is punished, whether future harm is prevented by systemic reform – is very long.

The longer the path, the more likely there are twists and barriers and traps and saboteurs between the RC and its stated goal.

Meanwhile, vested interests deliberately deny and derail and delay around RC proceedings: to avoid accountability for their wrongs and those of their mates or staff or institution. Witnesses tell the Commissioner they can not recall. It was all so long ago.

Then there are the false binaries as to whether Royal Commissions are political or impartial, effective or ineffective. Some Royal Commissions are party-political from day one, others are established after careful consideration of its nature and the terms of reference.

These binaries emerge because white western traditions and systems – of knowledge, of government, of society – are designed this way. Our adversarial system of law, the two-party model of government, rigid male-female genders and stereotypes: these are examples of how we organise and teach and understand the world in ‘the west’.

The model is neither accurate nor nuanced, but it is the one we have. And its beneficiaries are very aggressive in maintaining the status quo.

A Royal Commission may be relatively non-politicised; but all concern specific vested interests (such as organised religion or the nuclear industry) and RCs always concern the interests of governments. Different Royal Commissions have played different roles. But no RC in living memory has prompted “strong decisive” government action to implement all recommendations and thereby produce lasting, effective social change for the better.

EG

The Royal Commission into Trade Union Governance and Corruption was an unmitigated and expensive, deeply politicised failure. That a finding of corruption was pre-emptively written into its title is the first sign. The referrals for prosecution have not stood up to scrutiny by the relevant prosecutors. The Commissioner was compromised by perceptions of bias if not actual bias – where perception of bias was a decision reserved to the Commissioner himself.

In contrast, Black Rainbow founder Dameyon Bonson has been calling for a Royal Commission into Indigenous suicide. Rates of suicide among Indigenous people are the highest in the country. Young people and people from Lesbian, Gay, Bisexual, Transgender, Queer or Intersex (LGBTQI) community are over-represented again. There has been no national approach to understanding, let alone acting on, these known facts. No representation of Indigenous people on the various peak bodies. We see mass coverage of government homophobes attacking an education program designed to save young LGBTQI lives, but not of the intergenerational trauma carried in Indigenous communities since colonisation.

In this context, a national, co-ordinated response in the form of a properly funded Royal Commission that gathers evidence, tested by lawyers, has every chance of being the most effective next step to the work done by Black Rainbow and Joe Williams and others’ efforts to save the lives of their people from suicide.

The Royal Commission into Northern Territory Juvenile Detention Centres

I am against. These are my reasons.

1 As mentioned, the claims made about the efficacy of Royal Commissions, that RCs have the capacity to effect social change for the better, are misplaced. It is governments which must legislate and implement the recommendations.

2 There are thousands of Aboriginal and Torres Strait Islander people from hundreds of Indigenous nations around the country who have already analysed the evidence. Who have been stymied at every turn from bringing up their young people. Who have the knowledge, skills, understandings, love and care and motivation – but not necessarily enough resources or authority, which the colonial state has systematically stripped away – to care for young people.

Only the most Jurassic racists openly pretend that this state-sanctioned violence is to deal with kids who ‘cause trouble’. Like the NT Chief Minister. When (slightly less overtly racist) politicians gravely intone that this RC will ensure the terrible wrong will never happen again, they are demonstrating wilful ignorance of the system of government to which they have been elected. They are grandstanding. Posturing. Knowingly misleading the public. Lying.

Not only is implementing recommendations the role of government, but no RC recommendation has ever ensured Indigenous people are not harmed by the state. In fact, the state removes more Aboriginal children now than during the Stolen Generations eras. The state locks up Aboriginal people at a higher rate than when the RCADIC recommendations were handed down. A key finding of that RC was that the rate we lock up Aboriginal people is a direct cause of the rate that Aboriginal people die in custody.

4 Which raises the spectre of an RC doing more harm than good. Whenever Aboriginal people make steps towards equality and justice, the dominant majority – the white patriarchal state, citizens with structural social privilege (collectively and individually), corporate interests, conservative media, all these push back aggressively against Aboriginal people, Aboriginal people’s rights and interests.

This is how the official end of segregation and assimilation as government policy saw the beginning of a much harsher form of segregation: more children removed, and more locked up – often the same kids.

5 Cost-benefit, or better use of resources: RCs are very expensive. Lawyers cost a lot of money, as do researchers and scribes and security and sittings and per diem if the RC sits in multiple locations. There is an allowance for witnesses, whether abuser or victim.

The estimated cost of the Trade Unions RC was $80 million. This new one looks to have a similarly narrow scope (unlike the RC into Institutional Responses to Child Sexual Abuse, with its much wider jurisdiction).

What is the opportunity cost? Could $80 million cover a compensation scheme, be invested in remote communities, in health and education, in transport and recreation facilities? Who has the greater need for state funding: Aboriginal children, or lawyers?

6 Some recommendations on how to stop police and prison guards violently assaulting and even torturing children would be useful.

But this is not how the terms of reference will be framed. We know this, because the Prime Minister and Attorney General have committed to working with NT Chief Minister Adam Giles; and Giles has framed the problem as unloving parents and children who ’cause trouble’.

This problem – the subject of this RC – is about Giles’ racist government and its very violent employees.

The Northern Territory government signed off on the procurement of these ‘restraint’ chairs, as is clear from the linked story dated 22 April 2015, which reported: “Cable ties and restraint chairs are set to be approved for use on children in custody as young as 10 if new laws pass the NT Parliament next month.”

As young as 10.

Yet the Chief Minister watched footage of staff strapping a child to a chair with cable ties, men hooding a boy, men teargassing children, turning a fire hose on them, stripping a child naked in the most abhorrent way … and concluded:

“The best form of youth program there is the love of a parent. … In the Northern Territory, there are too many children who are unloved.”

If 60,000 years continuous survival is not evidence that Aboriginal and Islander people can bring up their children, what is?

There is simply no way an RC with terms framed by a man who thinks like Giles can effect positive change. The way he thinks and the stated objective of the RC process are incompatible, irreconcilable, do not inhabit the same discursive universe.

7 – 100: No Australian government has the courage or the know-how to stop police and prison guards from violently abusing Aboriginal people, especially children.

The people who are presenting this Royal Commission as a solution are part of the problem. The people who will write the terms of reference, who will tell us this process is to ensure it never happens again, can not, and will not, ensure any such thing.

Racist violence directed by successive white governors and governments has led us here. Attorney General Brandis limited the RC scope to the Northern Territory on the basis that the NT was “the particular problem that has been exposed” – exposed by a television program. This minimisation and isolation of a systemic problem is part of the problem.

The events shown on Four Corners are terrible, but they are on a spectrum rather than being a one-off, an aberration. All Australian governments employ men who violently abuse children in their care (as do churches, charities, boarding schools, armed forces and so on and on, ad infinitum, back to the culture of the C18 imperial power).

Yet these same men imply an RC comes with a magic Royal wand to safeguard against future governments passing laws that are designed to dispossess and otherwise oppress Aboriginal people. If Giles thinks black lives matter, he will repeal the paperless arrest laws and focus on the violence committed by government employees. He has not and will not do these things.

The timing, the politics, the narratives, and the role of RCs

The fact that the Turnbull government chose its announcement for maximum impact to capitalise on the Four Corners program; the feigned outrage and faux sincerity of every government member when asked about the footage (like Child Abuse RC witnesses, these people are only concerned with their own position, not those kids); the narrative of claiming shock when faced with the long established fact that government employees (and churches etc) grossly abuse young people; that Giles has been invited to give input …

These observations of how this thing is playing out in the public domain (and politicians treat the public domain as their private playground: double dissolution elections, plebiscites, Brexit), strongly indicates that the Commonwealth is using an RC announcement to appease the public; and that it will not be designed to stop government employees committing state-sanctioned racist violence.

Bearing witness is important, and has been done: by Aboriginal children and their families and communities; by the NT Children’s Commissioner and legal and other organisations; by governments and now by the viewing public. It is time for action.